L.N. Chhangani, J.
1. These eight references by the Additional District Magistrate, Alwar, should conveniently be disposed of by a common order.
2. The facts in each of them are similar though not Identical. The petitioner in each ofthe references is Bhagwandas. The non-petitioners are different in each of the references.There is alleged to be a dispute between thepetitioner and the non-petitioners as regards possession of some agricultural holdings in threevillages. Each set of the non-petitioners submitted an application on 20th of July, 1963, forinitiating proceedings under Section 145, Criminal P. C. It was alleged in these petitions thateach set of non-petitioners had been in cultivatory possession of an agricultural holding and entries in the revenue record showed their cultivation in the samvat years 2018 and 2019. It was further stated that in respect of the cultivation of 'Rabi' crop of samvat year 2019 the Patwari had made entries in favour of the non-petitioners but the Quanungo made correction in the entries and substituted the name of the petitioner for the non-petitioners as holding the possession of the agricultural holdings. The non-petitioners had approached the Land Revenue Authorities for getting the entries rectified.
According to each set of the non-petitioners, on 15th July, 1963, the petitioner Bhagwandas along with fifty other persons went to each of the holdings and wanted to dispossess the non-petitioners and thus a situation was created likely to lead to the breach of peace. On these facts the non-petitioners prayed for proceedings under Section 145, Criminal P. C. On the same day, the Sub-Divisional Magistrate forwarded each of these applications to the Station House Officer, Mundawar for enquiry and report. The Station House Officer sent reports saying that there were disputes between the parties likely to lead to breach of peace and recommended the initiation of proceedings under Section 145, Criminal P. C. It may be mentioned here that the Station House Officer did not forward with the report any papers relating to the enquiry held by him. The Sub Divisional Magistrate, on 26th of July, 1963, after perusal of the petitions and the reports of the Police Officer thought proper to initiate proceedings under Section 145, Criminal P. C. He passed preliminary orders as required by Section 145, Criminal P. C. and directed notices to the parties to submit their written statements as to their claims to actual possession as also to file documentary evidence and also evidence in the form of affidavits.
While passing the preliminary orders, the Magistrate further observed that from the police reports it was clear that there was immediate danger of breach of peace between the parties on the spots and that the parties were ready on the spots to cultivate the lands. It was further observed by the Magistrate that the rainy season having set in and there being appropriate time for cultivation and consequently, he having expressed his full satisfaction with the police reports, thought it proper to direct attachments of the lands in dispute. On the same, day, the petitioner Bhagwandas submitted applications supported by four affidavits in each case opposing the orders of attachments and the learned Magistrate in all the cases passed orders suspending the operation of the orders of attachments. Later on, on 31st of July, 1963, the learned Sub Divisional Magistrate, passed one line orders directing the issue of warrants of attachments. In the meanwhile, the petitioner Bhagwandas submitted revision applications against the orders dated 26th of July, 1863 in the Court of Additional District Magistrate. The Additional District Magistrate accepting the revision applications has recommended that the orders of the Sub Divisional Magistrate dated 26th of July, 1963 should be set aside. According to him, both the preliminary orders and the attachment orders were bad in law. In support of the reference, the Additional District Magistrate has recorded the fallowing reasons:
1. That the reports of the Girdawar-Quanungo dated 15-8-63 showing that the lands were in possession of the petitioner there remained no controversy for determination by the Sub Divisional Magistrate.
2. That the orders of attachments under proviso 3 of Sub-section (4) of Section 145, Criminal P. C. can only be passed after proper compliance with Sub-sections (1) and (3) of Section 145, Criminal P. C.
3. That the Magistrate did not properly apply his mind to the determination of the question of emergency and he passed orders in haste without calling the parties and giving them an opportunity of producing evidence, and affidavits. In support of this conclusion, the Additional District Magistrate relied upon the following considerations-
(i) That the police reports are identical copies of the applications of the non-petitioners and were not based on investigation nor was there any indication that the Station House Officer had gone to the spots.
(ii) The Additional District Magistrate also expressed an opinion that it was not possible for the petitioner Bhagwandas to have gone on the same day, that is, 15th July, 1963, to raise quarrel with all the sets of non-petitioners whose holdings are situated in three different villages.
(iii) The Additional District Magistrate also relied upon the subsequent orders of the Sub Divisional Magistrate in staying the operation of the attachment orders in support of his conclusion that there was no proper application of the question of emergency by the Sub Divisional Magistrate.
3. The reference has been supported by Mr. Chand Mal and Mr. L.K. Swami appearing for the petitioner. It has been opposed by Mr. Jain who has appeared on behalf of various sets of the non-petitioners.
4. The first question of law arising for determination is whether it is competent to a Magistrate acting under Section 145, Criminal P. C. to pass an order of attachment at the time of issuing a preliminary order without getting the preliminary order served on the parties The Magistrate in answering this question in negative has relied upon Sri Ram v. The State, AIR 1958 Punj 47. In that case, after referring to the eases relating to the proper construction of the proviso to a section and considering the scheme of Section 145, Criminal P.C. Tek Chand J. made the following observations:
'That being the true place of the proviso, it is to be read as annexed to Sub-section (1) and that to the preceding sub-sections. 'The use of the word 'then' at the beginning of Sub-section (4) indicates that the question of determination of the factum of possession under Sub-section (4) arises only after the requirements of Sub-section (1) and Sub-section (3) have been complied with.'
The observations made in that case when considered in isolation are capable of being construed to support the view propounded by the Additional Sessions Judge. (District Magistrate?) It must, however, be pointed out that the ultimate principle laid down in that case was in the following words:
'I cannot accept the argument advanced on behalf of the respondents that the third proviso to Sub-section (4) of Section 145, Criminal Procedure Code, is of such amplitude that it arms the Magistrate in case of emergency, with powers to attach the subject of dispute even without making the initiatory order under Sub-section (1) of Section 145.'
It appears that in that case there was no proper preliminary order under Section 145 Sub-section (1) Criminal P. C. On a proper appreciation of the facts and the eventual principles laid down in (therein?), this case cannot be adopted as an authority for the proposition adopted by the Additional District Magistrate and I am not persuaded to accept the extreme position that in no case a Magistrate can pass an order of attachment without getting the preliminary order served on the parties. In my opinion, the word 'then' appearing in Sub-section (4) simply implies that the enquiry contemplated in this sub-section can be commenced only after compliance with the provisions of Sub-section 1 and 3 but there is no justification for accepting the further contention that until the arrival to the stage of the commencement of the enquiry an order for attachment under proviso 3 cannot be passed. There is indeed difference between the commencement of proceedings under Section 145 and the commencement of the enquiry contemplated by Sub-section (4). A drawing up of the preliminary order marks the commencement of the proceedings under Section 145, Criminal Procedure Code, but the stage of the commencement of the enquiry is reached only after compliance with Sub-sections (1) and (3).
Proviso 3 dealing as it does with interim orders has reference only to the commencement of the proceedings and need not be related to the commencement of the enquiry. Evidently, there can be no bar for issuing order under proviso 3 after the commencement of the proceedings. There may conceivably be cases of emergency where it may be dangerous to wait for the formality of serving the preliminary order on the parties before issuing an order of attachment. [ may also refer in this connection to Tej Singh v. Ramla, 1953 Raj LW 373 where an order of attachment made along with the preliminary order was upheld by a Division Bench of this Court although the controversy raised in the present form before me was not raised in that case. On a consideration of the object of Section 145, Criminal P. C. I am not prepared to agree with the conclusion of the Additional District Magistrate and hold that in appropriate cases a Magistrate is competent to issue an order of attachment along with the preliminary order without it being first served on the parties.
5. I now turn to consider the principles which should guide the Magistrate while acting under proviso 3. Proviso 3 clearly states that the Magistrate may direct the attachment of the subject in dispute only in cases of emergency. The powers under the proviso are certainly of an extraordinary nature and should be exercised with sufficient care and caution. In Qadir Bangroo v. Subhan Shigan, AIR 1957 J and K. 51 Shahmiri J. stated the law in the following words:-
'It is true that the discretion of the Magistrate in ordering attachment of the property in dispute for maintenance of peace should not be lightly interfered with. But at the same time it has to be borne in mind that Section 145 confers extraordinary jurisdiction upon a Magistrate and this power has got to be exercised with great caution. In cases where this extraordinary power has not been properly exercised by the trial court, the High Court should not hesitate to interfere in the exercise of its revisional jurisdiction.'
The learned Judge further observed at a later stage that the order of the Magistrate did not disclose how he was satisfied that the case was one of such an emergency that he could pass an order of attachment of the property without hearing the objection of the other side and without satisfying himself which party was really in actual possession at that time. This view was approved by a Division Bench of the same High Court in Ahsan Soft v. Sona Mir, AIR 1958 J. and K. 17 Jammu and Kashmir High Court has relied upon the views expressed in Atma Singh v. Harnamsingh, AIR 1926 Lah 205.
6. Considering the scheme of Section 145 Sub-section (4) with all its provisos and the observations in the cases discussed above, I consider it proper to lay down that a Magistrate while passing an order of attachment should clearly indicate how he considers a case of emergency and how he considers the emergency of such a nature that an ex parte attachment should be ordered without giving an opportunity to the other side whose interests are likely to be affected. Ordinarily, an order of attachment should be made after hearing the parties to be affected by the order of attachment and only in rare and exceptional circumstances the Magistrate should pass an order of attachment after clearly indicating how in the interest of maintenance of peace an ex parte attachment order is necessary and insistence on proper service of notice to the parties required to be dispensed with.
7. At this stage, I may take note of an argument made by Mr. Jain on the basis of the observations made ill 1953 Raj LW 373. In that case it was held that if there is some material before the Magistrate and if on the basis of that material he has come to the decision about the existence of the state of emergency then the law gives him very vide discretion and it would not be proper for a revisional court to interfere only because another court can arrive at a different finding on the same material. It was contended that the learned Magistrate having some materials before him in the shape of applications and affidavits and the police reports was quite competent to pass orders of attachments and this Court should not interfere with the orders of the Sub Divisional Magistrate. The controversy in the present case which has been raised before me is that the Magistrate did not indicate in his orders that there was an emergency of such a type as to justify ex parte orders of attachments without giving opportunity to the petitioner. This controversy was not before the Division Bench of this Court in 1953 Raj LW 373 and, in my opinion, Mr. Jain cannot derive much assistance from that judgment.
8. Now, the question arises whether the Magistrate's orders can be sustained on the view of law stated above. The Magistrate while issuing attachment orders observed that there was likelihood of immediate breach of peace inasmuch as both the parties were ready to cultivate the lands. Further, noticing that rainy season had set in and it was time for cultivation, he felt satisfied as to the need of issuing the attachment orders. In the first instance, the Magistrate has not stated in so many words that the case was of emergency. This, however, is not very material, and I will not attach much importance to it. The real question to he determined is whether it is reasonable to infer from the orders of the Magistrate the there was a case of such an emergency that an ex parte order of attachments without giving opportunity to the other side were called for. The Magistrate nowhere stated that there was likelihood of serious riot so imminent that an attempt to serve notice on the other side would prove dangerous. It is also significant that none of the non-petitioners had cared to produce before the Magistrate copies of the entries of girdawari record to prima facie satisfy the Magistrate as to their claims to actual possession. It is also significant that on the same day the Magistrate suspended the operation of the attachment orders. If it was a case of emergency, the Magistrate could not have reasonably suspended the operation of the orders of attachment. Lastly, in spite of the petitioner having raised controversy the Magistrate eventually passed one Line orders on 31st July, 1963, directing the issue of warrants of attachments.
Considering the absence of any clear indication in the orders of 26th July as to the existence of emergency justifying ex parte attachments and the subsequent orders of the same date staying the operation of the attachment orders and the manner in which the orders were passed on 31st of July, I feel persuaded to agree with the Additional District Magistrate that the Sub Divisional Magistrate did not act with due care and caution and passed orders of attachments in haste without judicially applying his mind to the facts and the circumstances of the cases. It may be incidentally remarked that actual attachments were effected on 15th of August, 1963. The Additional District Magistrate has given various reasons for his conclusion that the Magistrate-acted in a hasty manner which have been quoted above. Mr. Jain offered criticisms in respect of some of these reasons. I do not propose to enter into a detailed discussion of all those reasons as I have already recorded a conclusion after discussing some aspects of the cases that there was no proper determination of the question of emergency by the Sub Divisional Magistrate before issuing the orders of attachments without bearing the petitioner.
9. The Additional District Magistrate has also recommended the setting aside of the preliminary orders. Mr. Chand Mal does not support this part of the reference and I think rightly, There is nothing improper and illegal in the preliminary orders.
10. The references are partially accepted, the orders of the Sub Divisional Magistrate dated 26th of July, 1963 as also the subsequent orders dated 31st July, 1963 directing the issue of warrants of attachments are set aside. Considering, however, the circumstances of the cases, I think it proper to direct that the Magistrate shall consider the question of emergency after hearing both the parties and considering all such materials as they may choose to produce before him in the light of the position of law discussed above. The parties are also directed to appear before the Sub Divisional Magistrate on 24th of November, 1964 with a direction to produce all relevant materials bearing on the question of emergency before the Sub Divisional Magistrate. The Magistrate shall pass proper orders in accordance with tow giving reasons in support of his orders. Until proper decision by the Magistrate I direct that the attachments of the properties and the arrangements made for the custody and the management and possession of the properties shall remain to operation. The Magistrate will decide after bearing the parties whether or not to direct attachments of the properties. In case he decides not to attach the properties the orders of this Court directing attachments as an interim measure, shall come to an end.